With all due respect, the majority has, in my judgment, failed to apply the law to this case.
The appellants are owners of one-half of the mineral interests in this land by virtue of a deed that dates back to 1927. The original owners of the interest, kinsmen of these parties, are now deceased.
This property interest was held by the parties and their predecessors as tenants in common. The coal has not been mined for 25 years. Before that, there was a small mining operation. There is not one item of evidence in this record of any single act that could be used to argue that the appellants or their predecessors in title had notice of adverse possession as required by law.
In the case of McGuire v. Wallis, 231 Ark. 506, 330 S.W. 2d 714 (1960), we dealt with a similar case where possession, as well as other facts, was used as a justification to claim title adversely. In McGuire, the cotenant was in charge of a farm, managing it for his own benefit, paying taxes and paying the installment payments upon a mortgage debt. We found these facts insufficient to support a claim of adverse possession against a cotenant. We said:
... in order for that possession to be adverse it was incumbent upon Clovis to bring home to his cUenants knowledge of his hostile claim, either directly or by acts so notorious and unequivocal that notice must be presumed. Smith v. Kapler, supra. Upon this point Clovis’s proof is fatally deficient. It is fair to say that his own testimony, when carefully read in its entirety, discloses that he never asserted a claim of exclusive ownership to a single one of his interested uncles, aunts, or cousins. His testimony implies that these relatives should have deduced from his occupancy that his position was hostile, but the law is otherwise.
Nor do we find in the record proof of any acts so notoriously and unequivocally hostile as to charge the appellants with knowledge of Clovis’s adverse claim. Counsel list an imposing array of facts that are said to satisfy the appellee’s burden of proof, but for the most part the various acts relied upon are merely subordinate aspects of conduct which, taken altogether, amounts simply to possession of the property. . . . [Emphasis added.]
The appellees argue that they had exclusive possession of the property and did not share the benefits from the coal. But, aside from these facts and the passage of time, they have nothing more. There was no severance of the mineral interests so that the taxes could be paid separately. The first notice of an adverse claim was when this lawsuit was filed by the appellees.
We have traditionally required a higher degree of proof when one cotenant seeks title by adverse possession against another cotenant. In the case of Bowlin v. Keifer, 246 Ark. 693, 440 S.W. 2d 232 (1969), we emphasized the principles of law that apply to such a case.
... In order for possession of a tenant in common to be adverse to that of his cotenants, knowledge of the adverse claim must be brought home to them directly or by such notorious acts of unequivocal character that notice may be presumed. Griffin v. Solomon, 235 Ark. 909, 362 S.W. 2d 707. Stronger evidence is required when a family relationship exists than in other cases. McGuire v. Wallis, 231 Ark. 506, 330 S.W. 2d 714; Ueltzen v. Roe, 242 Ark. 17, 411 S.W. 2d 894. The burden of proof was upon appellee. Smith v. Kappler, 220 Ark. 10, 245 S.W. 2d 809. . . .
The appellees have failed to demonstrate any hostile act or acts that could place the appellants or their predecessors in title on notice that their claim, evidenced by deed of record, was being taken from them without compensation by virtue of the right called adverse possession.
It was never intended that the law of adverse possession be used to give someone something that is unjustified. The law of adverse possession is intended to be a tool to solve title disputes, cure legal defects and settle boundary line disputes. It has been used by the appellees in this case to take something that does not belong to them rightfully or legally. With all due respect to the majority, I submit that the law was misinterpreted by the trial judge, not applied by the majority, and I would reverse and dismiss the decree of the chancellor.
I am authorized to state that Harris, C.J., and Fogleman, J., join in this dissent.